A Tough Act To Follow

But are we infringing copyright law if we use digital materials and digital technology in the same way that we use print materials in the classroom? Yes and no. The rules for using copyrighted materials when transferring content into digital form and transmitting it via computer networks are different and more confusing than for print. I'm sure you've asked yourself the following: Can I copy an article on the Web and distribute copies to my students? Can I scan an image and post it on the school's Web page? Can I make digital copies of all the library's videos and place them on a video server? Can I tape the school orchestra's program, make CDs of the performance, and sell them at a PTA conference? The answers to some of those questions lie in the 2002 Technology, Education and Copyright Harmonization (TEACH) Act, which aims to clarify the limits of using digital technology and copyrighted works both in the physical and virtual classroom.

While many educators remain confused about how TEACH can be applied, one thing the new copyright amendment does make clear is that the learning experience has changed and educational technology and digital copyrighted materials do indeed have a place in today's classroom. TEACH updates two sections of the copyright law—Section 110 and Section 112.

Section 110 allows teachers and students to publicly perform (show a DVD in the classroom) and to publicly display (show art slides) in the physical classroom without prior permission and now, in a virtual classroom that is received by students through digital transmission on a network. TEACH also permits the use of all or parts of a nondramatic work—a piece without a narrative or dramatic element, such as maps, charts, books, articles, and poetry. Dramatic literary works, such as most videotapes, films, operas, and dramas, can also be used in the digital classroom, but generally in smaller, more discrete portions. However, the law also says that any work that would ordinarily be used in the physical classroom and is central to the teaching goals of the class can be used in digital form and/or on digital networks.

Section 112, which addresses exemptions for the use of ephemeral materials, now permits eligible institutions to make digital copies of an analog work if that copy is made solely for classroom use. For example, you can make a digital reproduction of an image in a book without prior permission from the copyright holder if you're using it to teach a lesson. However, Section 112 does not give you the right to make a DVD copy of a videotape if the DVD is available for purchase. But if a digital copy is available to you, and you are unable to use it for teaching because of technological controls attached to the work, you may make a copy of the analog work, or videotape. Here's an example: perhaps your library has purchased a DVD that is watermarked or altered in some way to prevent unauthorized copying, but a teacher needs to copy a short clip of the DVD for classroom use. In that instance, the teacher can copy the video version (that is not protected by technological controls) to the DVD format. The digital copy can only be used in the classroom and can only be retained as long as necessary to meet the teaching objective. Additional copies are not permitted.

Only accredited, nonprofit educational institutions with certification from appropriate state or licensing agencies can take advantage of the TEACH Act. A for-profit education institution (such as Edison Schools) cannot use the TEACH exemptions but may exercise fair use or other applicable copyright exceptions that would allow the unauthorized use of protected materials in a physical or virtual classroom. In addition, the TEACH exemptions can only be exercised under the guise of "mediated instructional activities," defined in Section 110(b)(2) as activities supervised and initiated by the teacher. The reasoning here is that only the teacher can determine if the use of copyrighted materials is essential to the pedagogical goals of the class. Simply put, the law does not allow the use of digital materials in ways that go beyond what would ordinarily occur in the physical classroom.

Although the TEACH Act expands copyright allowances in the physical and virtual classroom, there are certain prerequisites required of educational institutions that exercise the law. These requirements may seem onerous, and for some who read the law very narrowly, downright impossible to meet. To take advantage of TEACH, eligible institutions must have in place copyright policies that are accurate and that "promote compliance" of the copyright law. These policies must be readily available to teachers, students, and staff.

It's important that the right people craft your school's copyright policy. Librarians must be included in this process because they are familiar with the copyright law. Media specialists know the kinds of resources teachers request and have a good feel for the digital materials market. Be sure to also include teachers who actually know what's going on in the classroom. While a lawyer should participate and certainly should critique the final document, don't let legal counsel work in isolation. Legal experts may not have a clear idea of how the modern classroom operates and therefore may neglect important considerations that directly affect the teacher, student, or librarian.

Copyright educational materials that are accurate, understandable, and readily available are also required by the TEACH Act. These materials should include the necessary context in order to understand why copyright rules need to be followed in the first place. For example, videos cannot be shown for entertainment purposes without a license because they are "public performances," an exclusive right of the copyright holder. Frequently asked questions regarding copyright are always popular, but use them with caution. With copyright law, there is usually no definitive answer to any copyright question. So while ordinarily, the screening of a video for entertainment purposes is an infringement, there could be a specific circumstance when screening the video falls under fair use, and is therefore lawful. One final note about educational materials: review with a critical eye the accompanying copyright information supplied by publishing or software companies. It's easy to accept this information as the "official rules of conduct," but industry interpretation of copyright law is likely to be more conservative than our own. We value the contributions and rights of copyright holders but we also take full advantage of copyright exceptions whenever appropriate under the law.

Educational institutions have one last hurdle to jump before taking advantage of TEACH: Section 100(c) of the TEACH Act says the transmission of copyrighted works must be "made solely for and to the extent technologically feasible for the reception of students enrolled in the course." In other words, it's important to consider what your school can do to ensure that only students enrolled in a particular class have access to that class's materials. But limiting access is less of a problem for K–12 schools, which, unlike colleges and universities, typically have a more limited and controlled student enrollment. Nevertheless, consider using passwords to protect access to copyrighted works that students retrieve via computers at home, the library, or wherever their virtual classroom might be. Nontechnical solutions include clearly labeling digital works with copyright notices and reminding students that unauthorized copying may be an infringement of the law.

TEACH also stipulates that technology be used to reasonably prevent the retention of copyrighted works in accessible forms for any time longer than the class session, and that technology should be used to reasonably prevent the further distribution of the work to others [emphasis added; Section 110(d)(ii)]. The concern over retaining material can be addressed fairly easily. Institutions should have a mechanism in place to remove or block access to the course materials when they are no longer needed for teaching purposes. The prevention of further distribution of works, however, is much more difficult because there is no known technology that offers complete control over the reproduction and distribution of works. Luckily, the law does not require institutions to guarantee 100 percent effectiveness of the technological methods employed to prevent copying and further distribution.

If your educational institution can develop a copyright policy; provide copyright educational materials; and use technology to limit access, retention, and unauthorized copying and distribution of copyrighted works, you're ready to take advantage of the TEACH exemptions. If you feel that the TEACH requirements are more burdensome than beneficial, you can always choose to bypass the law. In doing so, your institution should make an active decision with wide input from all concerned parties. Some educational institutions have already brushed aside the TEACH Act, and some are waiting to see what other schools and colleges will do. Educators, librarians, and other staff members are already so overtaxed, they feel they are in no position to take on new work. Of course, another legitimate alternative is to continue to rely on principles of fair use and to perhaps benefit from the same exemptions described in TEACH without all of the extra obligations.

In general, the use of digital materials in the classroom or the transfer of digital materials via computer networks for educational purposes constitutes fair use. In fact, we know that educational institutions of all shapes and sizes have been using digital materials for years without any problem. Schools have not been sued or taken to court over the use of copyrighted materials in the classroom.

TEACH provides us an opportunity to define the law by our behavior. Those schools that have determined the level of technological controls called for under TEACH to meet the burden to "reasonably protect" have, in effect, set a new standard. Lawyers can give you legal interpretations of the law, but only teachers and librarians can demonstrate how people make sense of the law. Behavior shapes law. If TEACH is not exercised, the exemptions to copyright law will, over time, have less meaning and value. It will appear as if educational institutions do not really need TEACH and therefore should not be allowed extra advantages under the law. And, unfortunately, since copyright laws constantly evolve in the interest of the copyright holders, we can't ensure that fair use will be available in the future. Copyright holders are seeking new ways to control the use of digital materials by lobbying both Congress and federal regulatory agencies.

Librarians need to stay on top of changes in the copyright law. New exemptions like TEACH help to guarantee that teaching and research are unique activities and should not be so tightly restricted by copyright law if they are to advance knowledge and creativity for the public. Our responsibilities to our users will continue to expand because technological advancement brings both benefits and drawbacks as well as increasing legal complexity. As school librarians, your responsibilities are great. My advice? Continue learning and remain involved in decisions affecting copyright policy at your school.

Carrie Russell is the American Library Association's copyright specialist.